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Paul Ryan has had his eyes on Social Security for a long time.
In 2001, when Republicans controlled the presidency and were well positioned on Capitol Hill, Ryan was invited to the White House to present ideas to the new Bush-Cheney administration.
The well-regarded second-term congressman met with Vice President Dick Cheney, who was at the peak of his co-presidency powers. Like Cheney in his younger years, Ryan was a former congressional aide who had worked the conservative think-tank circuit before getting himself elected to the House. The Washington insiders should have gotten on famously.
But the vice president was not buying what the man, who is now described as “the intellectual leader of the Republican Party,” was selling.
Ryan recalls the meeting this way:
“The surplus has given us a huge opportunity,” I explained. “If we dedicate the Social Security surplus to reform, we can shore up the program and end the raid on the trust fund.” I talked about the opportunity to create a real ownership society, how workers could actually own a piece of the free enterprise system through these reforms. As soon as I finished my pitch, Vice President Cheney said, “Yeah, we’re not going to do that.” Then he looked at the person sitting next to me, signaling that he was ready to hear the next idea. His terse reply was the verbal equivalent of someone swatting an annoying mosquito from his face.
Thats’s not the only point in his new book where Ryan writes of getting the “annoying mosquito” treatment. The House Budget Committee chairman paints a dim picture of fellow Republicans who get weak in the knees whenever he starts prattling on about dismantling Social Security as we know it. Needless to say, he is even more relentless in his criticisms of President Obama and the Democrats on this issue.
What Ryan never quite recognizes is that Cheney, for all his conservatism, has always been something of a realist when it comes to domestic politics. (He saves his neoconservative flights of fantasy for foreign-policy debates.) Like Ryan, Cheney learned his politics in Wisconsin. Though he was raised in Wyoming, the future vice president cut his political teeth as an aide to former Governor Warren Knowles and then to Wisconsin Congressman William Steiger.
Knowles and Steiger were mainstream Republicans of a sort rarely seen any longer in a Grand Old Party that has abandoned most of its “Party of Lincoln” pretensions. Both had their conservative sides, but they also had what Cheney described in his own autobiography as “formidable political skills.” Those skills were rooted in an understanding that, to govern, one first had to be elected—and that, even in a political age that has been increasingly warped by Wall Street money, voters tend to reject candidates who threaten necessary and valued federal programs.
This is something Ryan struggles with, in part because he’s been sheltered until recently from a lot of political realities. The congressman’s House elections have come relatively easily, thanks to increasingly favorable district lines and (until the recent challenges of Democrat Rob Zerban) relatively lax opposition. But, as the congressman recounts in his new book, the Romney-Ryan ticket lost in 2012—by a 5 million popular-vote margin and a 332-206 Electoral College landslide.
“Why did we lose? How did it happen?” Ryan writes. “Why does the Republican Party seem to keep losing ground?”
The point of the congressman’s book is to answer those questions. But Ryan never gets there. Instead, he bogs down in pop psychology and strategic talking points—failing to recognize that Dick Cheney sorted it all out for him in 2001.
The American people do not want to reform Social Security, Medicare and Medicaid as part of some austerity scheme to balance budgets on the shoulders of the elderly, people with disabilities and children whose families cannot afford healthcare. And despite all the scaremongering that underpins “entitlement reform” debates, they have come to recognize that they do not have sacrifice in the way Ryan says they must.
Budgeting is all about priorities. Congress chooses which programs to preserve and which to diminish or dismantle. Congress also chooses whether to cover the costs by asking more from those who can afford to pay or to do so by shifting the burden to those most in need. The American people get this. And they want their leaders to respond to proposals to cut Social Security, Medicare and Medicaid by saying, “Yeah, we’re not going to do that.”
Cheney has been around politics long enough to understand this dynamic, not because he is a liberal, and not because he is disinclined toward schemes for redistributing the wealth upward. The man who did so much to privatize the military when he was in charge at the Pentagon would undoubtedly love to privatize some domestic programs, if he could see a politically palatable way to pull it off. When the Bush-Cheney administration tried in its second term to restructure Social Security, the vice president loyally followed the script—making statements that sounded themes familiar to Ryan—until the initiative collapsed. But entitlement reform was never really the vice president’s thing; in his biography he wrote of a time when “[e]ven I had to struggle to stay awake as I slogged through a speech on Medicare reform.”
When there is no politically palatable option, Cheney’s often been a “not-going-to-do-that” kind of guy. As a former secretary of defense in the mid-1990s, he entertained a 1996 presidential bid but then abandoned the project when no one seemed interested. Cheney recognized then, as he appeared to again in his 2001 “annoying mosquito” conversation with Ryan, that domestic political calculations require at least some deference to the wisdom of the American people.
Today that wisdom says that the United States need not, and must not, slash the social safety net in order to advance reforms that will be very good for Wall Street but very bad for Main Street. Until Paul Ryan accepts this reality, he will remain stuck on the same questions. Indeed, if the Republicans nominate the ambitious young congressman for president in 2016, and if he runs on the agenda Dick Cheney swatted away fifteen years earlier, Ryan will again find himself asking, “Why did we lose? How did it happen? Why does the Republican Party seem to keep losing ground.”
Read Next: George Zornick on why for many politicians and 2016 contenders, Ferguson is invisible.
“A popular government, without popular information, or the mean of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both,” declared James Madison, the author and champion of the Bill of Rights. “Knowledge will forever govern ignorance; and a people who mean to be their own governors must arm themselves with the power which knowledge gives.”
This is still the essential truth of an American experiment that can only be advanced toward the equal and inclusive justice that did not exist in Madison’s time by a broadly informed and broadly engaged citizenry. When journalists are harassed, intimidated, threatened and detained, the basic premise of democracy—that the great mass of people, armed with information and perspective, and empowered to act upon it, will set right that which is made wrong by oligarchs—is attacked.
Where assaults on the gatherers and purveyors of popular information occur, those assaults must be challenged immediately. Social media and then mainstream media did just that after Washington Post writer Wesley Lowery and Huffington Post writer Ryan Reilly were arrested, detained and then released without charges or an explanation by police in Ferguson, Missouri, as they were reporting on the tensions that developed after 18-year-old Michael Brown was killed in a police shooting. The detention of reporters is merely one illustration of the seriousness of the broader battering of civil liberties and civil rights in Ferguson, a battering so severe that Amnesty International has made the unprecedented move of deploying human rights observers to the city.
The detentions of Lowery and Reilly stirred an outcry. Washington Post editor Martin Baron decried the incident as “wholly unwarranted and an assault on the freedom of the press to cover the news.” President Obama said the next day, “Here in the United States of America, police should not be bullying or arresting journalists who are just trying to do their jobs.” Amid a steady stream of reports that other reporters, still photographers and camera crews were being threatened, teargassed, assaulted and detained in Ferguson, forty-eight national media organizations and press freedom groups signed a letter to local authorities declaring, “This type of behavior is anathema to the First Amendment and to journalists everywhere.”
These are necessary answers to what happened with Lowery and Reilly, and to the growing list of complaints from journalists in Ferguson. Yet no one should be satisfied with emergency responses to glaring, and well-reported, assaults on the ability of journalists to do their work. It matters to express immediate outrage. But that is not a sufficient response, as has become evident in Ferguson—where Getty Images photographer Scott Olson was arrested on Monday, and where early Tuesday saw the arrests and jailing for several hours of Intercept reporter Ryan Devereaux and German journalists Ansgar Graw, Frank Hermannt and Lukas Hermsmeier. According to CNN, "The incidents bring the total number of journalists arrested during the mid-August protests to 11."
Graw, a veteran correspondent for Germany's Die Welt, wrote after his release, “This was a very new experience. I’ve been in several conflict zones: I was in the civil war regions in Georgia, the Gaza strip, illegally visited the Kaliningrad region when travel to the Soviet Union was still strictly prohibited for westerners, I’ve been in Iraq, Vietnam and in China, I’ve met Cuba dissidents. But to be arrested and yelled at and be rudely treated by police? For that I had to travel to Ferguson and St. Louis in the United States of America.”
The news from Ferguson highlights the need for a broader defense of journalism and democracy.
There has to be a consistent and absolute defense of the rights not just of high-profile national reporters but of all journalists and all citizens who gather information, demand answers, speak truth to power and then seek to disseminate their reports.
The assault on press freedom does not begin or end in Ferguson. The robust journalism that America requires has, of course, been undermined by the constant cuts imposed by hedge-fund media moguls. But even where media outlets still try to tell the stories that need to be told, they face threats from government agencies that are supposed to be checked and balanced by a constitutional prohibition on any official action abridging the freedom of the press—or of the related democratic rights to speak, to assemble and to petition the government for a redress of grievances.
Press freedom groups are busy these days, calling out local police forces in communities that deny reporters to news scenes, challenging state officials who refuse to obey open-records requests and federal officials who have grown increasingly aggressive in their efforts to monitor reporters and to try and force journalists to reveal the names of whistleblowers. “There is an attitude shift that says it’s OK to go after reporters to get information to use in litigation,” explained veteran First Amendment lawyer Theodore Boutrous in a recent interview with the McClatchy Washington Bureau. “That is very dangerous and has a real potential for chilling free speech and free press and reporting on important issues.”
On the very same day that the president was objecting to the bullying of journalists in Ferguson, the Reporters Committee for the Freedom of the Press and other journalism groups demanded that the federal government halt legal actions against New York Times reporter James Risen, who has been threatened with prosecution if he does not reveal the names of confidential sources for his groundbreaking 2006 book, State of War. A petition submitted to President Obama and Attorney General Eric Holder, and signed by more than 100,000 press freedom supporters, urged the administration to abandon a policy of subpoenaing journalists to reveal their sources.
Risen and his allies noted, correctly, that his case is just one of many instances where federal, state and local authorities have pressured journalists with legal threats. “I also know that it’s really not about me. It’s about some basic issues that affect all Americans and all journalists,” Risen explained. “I’m willing to do this for the future of journalism.”
More than the future of journalism is at risk. While every First Amendment freedom is important, Delphine Halgand, the director of the Washington office of Reporters Without Borders makes a vital point when she argues that freedom of the press “is the freedom that allows us to verify the existence of all other freedoms.”
That understanding ought to be the basis for a new movement to defend journalism not just from high-profile and immediate assaults but from what veteran journalist Norman Solomon refers to as the patterns of “fear and intimidation” that have always existed but that have accelerated and extended in the years since the 9/11 attacks on New York and Washington. This project cannot be about Democrats versus Republicans; this cannot be a left-versus-right game of dueling media silos. It must be transpartisan, bringing together citizens across the ideological spectrum to say that, without the free flow of information and open debate, all ideas are diminished. Americans with “Don’t Trust Corporate Media” bumper stickers have to align with Americans with “Don’t Believe the Liberal Media” bumper stickers in a shared recognition that some struggles go beyond politics.
None of this means that we must to pretend to like all journalists, or all media outlets. It is right and necessary to call out journalism that fails democracy. Media criticism, at its best, is not rooted in partisanship, or ideology; it is a demand for the pursuit of truths that someone with economic or political power does not want told. Americans have good reason to be frustrated with media that misses the essential stories of racism and inequality, as well as assaults on privacy and military adventurism. They should be furious with media monopolists who abandon civic and democratic ideals in the pursuit of commercial and entertainment compromises.
That frustration and anger cannot, however, become an excuse for abandoning the defense of journalism. In these times of manipulated media and constant assaults on the people’s right to know, citizens must take up the cause of the journalism that is on the street in Ferguson, that is exposing corporate wrongdoing, that is meeting with whistleblowers in Washington.
What is happening in Ferguson must be condemned, and there must be accountability. Authorities need to explain why journalists have been assaulted and arrested even when, according to the Intercept’s John Cook, “they had their hands raised in the air and were shouting, ‘Press! Press! Press!’” And journalists need to recognize their circumstance as part of a broader First Amendment struggle, as CNN’s Don Lemon did after he was physically pushed around Monday by police during a live shot from Ferguson. “Now you see why people are so upset here, because we have been here all day,” said Lemon. “We’re on national television. So imagine what they are doing to people when you don’t see on national television, the people who don’t have a voice like we do.”
But the response cannot stop there.
Congress needs to enact a shield law that protects journalists and whistleblowers, recognizing that Congressman Alan Grayson is right when he says, “The Constitution and the First Amendment provide for freedom of speech and of the press. It is completely incongruous to say we have freedom of the press, but the Federal Government can subpoena your sources and put them and you in prison—you, if you don’t comply.” Federal, state and local government must strengthen open meetings and open records laws; recognizing that in a digital age it should be easier and faster (not to mention cheaper) to meet the requests of citizens who want to know what is being done in their name but often without their informed consent—and of the journalists who inquire on their behalf. Resources must be made available so that every law-enforcement agency in every jurisdiction, from the FBI to the sheriff’s department in the most remote county, can train agents, deputies and officers to respect the whole of the Constitution, including the provision for a free press. And the courts must be peopled with jurists who respect the connection between a freedom of the press and all other freedoms; where judges are appointed, nominees must be grilled with regard to their constitutional commitments; where judges are elected, the First Amendment must be an issue.
What is at stake is a free and open society; and it is not enough that the most egregious wrongs have been identified and decried. The culture, the climate, in which those wrongs occur so frequently, must change. It must change because the journalism that goes to places like Ferguson, the gets behind the façade of institutions like the Central Intelligence Agency and the National Security Agency, that demands accountability from street cops and presidents, is much more than an exercise in information gathering. It is the vital link that gives citizens the information they need to bend the arc of history toward justice. There is no middle ground in this regard. Americans are either going to defend speak-truth-to-power journalism and vibrant democracy—as part of a broad reassertion of First Amendment rights—or they are going to have to settle for propaganda and oligarchy.
Read Next: Alex S. Vitale on how to end militarized policing.
When Missouri Senator Claire McCaskill called this week for the “demilitarization” of Ferguson, Missouri, she could have been talking about hundreds of other communities across the country. In recent years, as the American Civil Liberties Union details in its remarkable new report, “War Comes Home: The Excessive Militarization of American Policing,” the restructuring of local police departments into what look like occupying military forces has become “a nationwide trend.”
That trend was illustrated for America and the world by scenes from Ferguson where, after a police officer shot and killed 18-year-old Michael Brown, tensions flared. Local police met protests not just with extreme tactics—including the detention of journalists and the arrest of an elected alderman from neighboring St. Louis—but with armored vehicles, heavy weapons and a show of military force that made matters worse. With a bluntness that is rare for a US senator addressing the circumstances in a community in her state, McCaskill argued that “this kind of response by the police has become the problem instead of the solution.”
She was right about Ferguson, and about America.
The militarization of local policing is, indeed, a nationwide trend. It is encouraged by misguided “war on drugs” policies, misdirected Department of Homeland Security initiatives and the Department of Defense’s 1033 program, which sends “surplus military equipment” that USA Today describes as “left over from US military campaigns in Iraq, Afghanistan and elsewhere” to underfunded police departments. It remakes those departments in a way that, the ACLU notes, “unfairly impacts people of color and undermines individual liberties, and it has been allowed to happen in the absence of any meaningful public discussion.”
Ferguson has changed the discussion.
Now, it’s time to change the policies.
“Since the 1980s the US government has enabled the militarization of the police force as part of its so-called War on Drugs. Post-9/11 politics opened the floodgates with grants from the federal government to prepare for the imminent terrorist threat. Now, as combat missions in Iraq and Afghanistan have ended, the Pentagon is literally giving battlefield hardware away,” says Kevin Martin, executive director of Peace Action, which has organized a campaign to press members of Congress on the issue. “The militarism of policing—both in terms of weaponry and tactics—is a threat to our freedom as great as any coming from outside our borders. It’s time to put it to a stop.”
Democratic and Republican members of Congress have begun to step up on the issue.
“Our main streets should be a place for business, families, and relaxation, not tanks and M16s,” Johnson says in his letter. “Our local police are quickly beginning to resemble paramilitary forces. This bill will end the free transfers of certain aggressive military equipment to local law enforcement and ensure that all equipment can be accounted for.”
Noting the circumstance in Ferguson, and similar circumstances in communities across the country, the congressman makes the point that “before another small town’s police force gets a $700,000 gift from the Defense Department that it can’t maintain or manage, it behooves us to rein in the Pentagon’s 1033 program and revisit the merits of a militarized America.”
Johnson is a progressive who, with Congressman John Conyers (D-Michigan) and a handful of others in the House, has a track record of asking tough questions and taking bold stands regarding policing issues. But progressives are not alone is suggesting that the time has come to “revisit the merits of a militarized America.”
“There is a legitimate role for the police to keep the peace, but there should be a difference between a police response and a military response,” stresses Kentucky Senator Rand Paul, a leading contender for the 2016 Republican presidential nomination. “The images and scenes we continue to see in Ferguson resemble war more than traditional police action.”
Paul complains that “Washington has incentivized the militarization of local police precincts by using federal dollars to help municipal governments build what are essentially small armies—where police departments compete to acquire military gear that goes far beyond what most of Americans think of as law enforcement.”
He’s right about that. And he is right when he says in a Time magazine essay:
When you couple this militarization of law enforcement with an erosion of civil liberties and due process that allows the police to become judge and jury—national security letters, no-knock searches, broad general warrants, pre-conviction forfeiture—we begin to have a very serious problem on our hands.
Given these developments, it is almost impossible for many Americans not to feel like their government is targeting them. Given the racial disparities in our criminal justice system, it is impossible for African-Americans not to feel like their government is particularly targeting them.
The rough outlines of a left-right coalition to demilitarize local policing have begun to take shape. This is a vital development that extends from the frustration of Americans over what they have seen play out not just in Ferguson but in cities, villages and towns nationwide. But to begin to get to a “No More Fergusons” moment, that development must be coupled with a parallel initiative to refocus policing on the dual responsibility of defending public safety and defending the rights of citizens.
Just as the recognition of the need to debate and address militarization of local police forces has deep roots—in the work of the ACLU and writers such as Radley Balko, the author of Rise of the Warrior Cop: The Militarization of America’s Police Forces (Public Affairs)—it should be understood that the debate about smarter policing is not new.
Some of the strategies employed to ease tensions in Ferguson by Missouri State Highway Patrol Captain Ron Johnson—who was put in charge of policing Ferguson by Missouri Governor Jay Nixon— mirror those adopted by visionary law-enforcement leaders, departments and officers in recent years. To be sure, the captain’s task has been made more difficult by the level of mistrust that was created before he took charge—and that continued to be stirred by the controversial actions of the local police chief,
It will take time to restore not just calm but the relationships that are necessary to begin the “healing” that Johnson says is necessary—and possible.
But alternative models for policing can, and do, work.
During the mass protests at the Wisconsin Capitol in 2011, the top local law enforcement officer on the scene was Dane County Sheriff Dave Mahoney. Protests went on around the clock for weeks with no serious violence or arrests. The situation was tense at times. But police officers and protesters generally got along. As Mahoney explained, “Law enforcement agencies have responsibilities: They have to keep the peace. And they have to assure that citizens are able to exercise their First Amendment rights. There’s something very troubling about the notion that law enforcement agencies should play a role in preventing people from exercising their constitutional rights. That’s not how it is supposed to work.”
The American people are ready for a demilitarization of policing, as the positive response to Captain Johnson’s initial approach in Ferguson suggests. They are ready, as well, for policing that strikes a right balance of guaranteeing public safety while preserving civil liberties.
Sheriff Mahoney struck that right balance with considerable success in 2011. And the people have rewarded him for doing so. On August 12, Mahoney’s name was on the ballot, along with that of a retired deputy who mounted an active challenge in the sheriff Wisconsin’s second-largest county. Mahoney won, with 89 percent of the vote.
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The constitutional crisis that has developed in Ferguson, Missouri, begins as is so often the case with a human tragedy. Michael Brown, an unarmed African-American teenager has lost his life, following an incident—now under investigation not just by local authorities but by the US Department of Justice—in which a witness tells CNN, “I saw the police chase him…down the street and shoot him down.”
When circumstances spin out of control, as they clearly have in Ferguson, it is essential always to remember the human element at the heart of the matter. In another time and another place, the singer Peter Gabriel nailed this with the gripping refrain of “Biko,” his anti-apartheid anthem that steadily reminded the world, “A man is dead, a man is dead.”
What has evolved since the death of Michael Brown, however, illustrates the challenges that arise when law-enforcement officials fail to fully recognize and embrace their dual responsibility: to maintain public safety while at the same time guaranteeing the rights of Americans to speak, to practice journalism, to assemble for the purpose of making demands on those in power.
Missouri Governor Jay Nixon, a former state attorney general, seems to recognize that something had gone badly awry. After another turbulent night in Ferguson, the governor finally canceled appearances in other parts of the state on Thursday and announced he was going to the community where heavily armed police have confronted, arrested and detained protesters and journalists.
“The worsening situation in Ferguson is deeply troubling, and does not represent who we are as Missourians or as Americans,” declared Nixon, a Democrat who on Thursday afternoon announced plans for an “operational shift” and a “different tone” in the policing of Ferguson. “While we all respect the solemn responsibility of our law enforcement officers to protect the public, we must also safeguard the rights of Missourians to peaceably assemble and the rights of the press to report on matters of public concern.”
Missouri’s Senator Claire McCaskill was blunt : “We need to demilitarize this situation—this kind of response by the police has become the problem instead of the solution. I obviously respect law enforcement’s work to provide public safety, but my constituents are allowed to have peaceful protests, and the police need to respect that right and protect that right.”
When President Obama spoke about Ferguson on Thursday, he too highlighted constitutional concerns. While the president said there was “never an excuse for violence against police or for those who would use this tragedy as a cover for vandalism and looting,” he emphasized that there is “no excuse for police to use excessive force against peaceful protests or to throw protesters in jail for lawfully exercising their First Amendment rights. And here in the United States of America, police should not be arresting or bullying journalists who are just trying to do their jobs.”
It is getting difficult to keep count of the number of constitutionally defined protections that have been undermined and neglected in Ferguson. Surely, most lists begin with evidence of a disregard for the promise of equal protection under the law. But they do not end there. The reports from each new day, and especially from each new night, point to a disregard for the First Amendment that tells us no law shall be made “abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Law enforcement agencies have a duty to maintain public safety, to arrest and prosecute those who commit crimes, and to take reasonable steps to prevent violence, looting or riots that might threaten communities. But there is a parallel duty to protect against abridgments of First Amendment rights. The balance can be difficult to strike, but it is when the difficulty arises that the striking of the balance is most important.
When the balance is not kept, there is, as Demos president Heather McGhee says, “an affront to democracy” that must be addressed by local, state and federal officials.
“There is nothing more American than a community uniting in the face of tragedy, than ordinary people organizing to peacefully protest injustice,” says McGhee. “The police reaction—to protests of their own violence—has been more violence, less transparency, and an active suppression of first amendment freedoms.”
In Ferguson, there have been chaotic moments. But there have also been sincere efforts by religious and community leaders to peacefully protest police actions. What is unsettling is the extent to which these protests have been met with overwhelming force and responses that appear to rescind basic rights during much of the day. For instance, citizens were told by the police that they should assemble only during daylight hours and protest only in a “respectful manner.”
The American Civil Liberties Union of Missouri correctly labeled that police statement as “a direct attack on protected expressive liberty.”
“The protests in Ferguson are at the core of the First Amendment’s protection because they deal with matters of public concern,” wrote Jeffrey Mittman, the executive director of the Missouri ACLU, in a letter to the Ferguson police chief. The letter notes that “the protests in Ferguson are subject to a heightened protection for the additional reason that they are peaceful and conducted on public streets and sidewalks.”
Mittman’s letter pays particular attention to the police demand that protests proceed in a “respectful manner.” That, he explains, “is far beyond the bounds of permissible government activity. Government agencies do not get to demand respect from protesters. Respect is something that government officials earn from citizens, and citizens are entitled to express their lack of respect by protest on public streets and sidewalks. Actions to suppress peaceful expressive activity dilute that respect and, thus, are contrary to your request.”
Evidence of the constitutional crisis is also found in reports that journalists who are attempting to cover the story are being harassed, arrested and told to exit the scene. On Wednesday night, reporters for The Washington Post and the Huffington Post were detained by police in Ferguson, in what Washington Post executive editor Marty Baron described as a “wholly unwarranted…assault on the freedom of the press to cover the news.” Later, St. Louis Alderman Antonio French, who has used his Twitter account and interviews to report on developments in the St. Louis suburb, was jailed for most of the night.
“In an American city, people are being tear-gassed and snipers are pointing rifles at them,” French told the St. Louis Post Dispatch after his release Thursday morning. “Everybody should be upset.… [the] heavy-handed police approach is actually making the situation worse.
In particular, French objected in media interviews to police crackdowns on peaceful protests during the evening.
“We have a right to protest 24 hours a day,” the alderman said. “Our constitutional rights don’t expire at 9 p.m.”
Antonio French is right.
That is a basic premise of the American experiment.
It is, as well, a basic premise of effective policing.
During the mass protests at the Wisconsin Capitol in 2011, the top local law enforcement officer on the scene was Dane County Sheriff Dave Mahoney. Protests went on around the clock for weeks with no serious violence or arrests. The situation was tense at times. But police officers and protesters generally got along. As Mahoney explained, “Law enforcement agencies have responsibilities: They have to keep the peace. And they have to assure that citizens are able to exercise their First Amendment rights. There’s something very troubling about the notion that law enforcement agencies should play a role in preventing people from exercising their constitutional rights. That’s not how it is supposed to work.”
The police can strike the proper balance. And the people will respect them when they do so. This week, Mahoney was up for re-election. The sheriff beat his challenger, winning 89 percent of the vote.
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Mary Burke’s name appeared for the first time on a statewide ballot in Tuesday’s Democratic primary for governor of Wisconsin.
In fact, it was the first time that Burke’s name had ever appeared on a partisan ballot.
Aside from a successful nonpartisan bid for a seat on the Madison School Board in 2012, Burke has never before contended for elective office.
Yet, on Tuesday, the former Trek Bicycle executive and Wisconsin Secretary of Commerce won the highest vote of anyone on the ballot for any statewide office, taking 83 percent of the vote against state Representative Brett Hulsey, D-Madison. Despite his long record in state politics, Hulsey’s run was weakened by personal and political stumbles; yet in a year of political frustration and disenchantment that has seen top-of-ticket contenders in other states (such as Kansas Governor Sam Brownback) lose as much as 35 percent of the vote to little-known primary challengers, Burke’s finish was robust and significant. Notably, in many western and northern Wisconsin countries where she must renew her party’s appeal, Burke was winning well over 90 percent.
The scope of the statewide win builds on the sense created by recent polls—which have since May portrayed the race as a toss-up, with Walker and Burke both capturing around 47 percent of the likely November vote—that Burke has evolved into a serious challenger to Republican Governor Scott Walker, the anti-labor, pro-austerity, extreme social conservative who began the 2014 race as a prohibitive favorite.
That does not necessarily mean that she will beat Walker, the all-but-announced 2016 Republican presidential contender who was unopposed in Tuesday’s GOP primary. But the strong primary finish provides another indicator that Burke, an unlikely and unexpected contender for the governorship, might well be putting together the campaign that Democrats lacked in their 2010 and 2012 attempts to beat Walker.
A favorite of the Koch brothers and conservative donors across the country, Walker will still have a lot more money to spend in 2014. And he has already confirmed that he will use it wage a scorched-earth campaign, characterized by brutally negative television ads. Unfortunately for the governor, however, his ads may actually have strengthened Burke—especially after the governor launched a bumbling attack on outsourcing by Burke family’s firm, Trek, that drew criticism even from Walker-friendly media outlets such as The Wall Street Journal.
Walker will also have the power of incumbency—no small factor in the hands of a Chris Christie–style electoral micromanager who has done more to politicize appointments and policymaking than any Wisconsin governor in modern times.
But Burke brings to the fall race two strengths that go to the heart of Walker’s vulnerabilities in a state that has not backed a Republican for president since Ronald Reagan in 1984.
Even now, Burke remains relatively unknown—almost half of voters tell pollsters that their opinions of her are not fully formed. That gives Walker an opening for more attacks, of course. But it also means that the challenger has room to build on her strengths, which are:
1. Burke is the first woman ever nominated by a major party for governor of Wisconsin. And polls show that she has benefitted from a gender gap that has been an increasingly significant factor in the state’s elections. Like US Senator Tammy Baldwin, D-Wisconsin, who coasted to victory in 2012 on the strength of a 56-41 advantage among women voters (as opposed to a much narrower 51-46 advantage with men for Republican former Governor Tommy Thompson), Burke’s position is bolstered by support from women. Marquette University Law School polls have given Burke a seven- or eight-point lead among likely women voters, while Walker maintains a solid advantage with men.
As women make up more of the electorate, the female voters who are putting Burke into contention could be a determining force in November. If the Democrat builds even marginally on her advantage among women, Burke’s chances of winning expand exponentially. If she can get anywhere near Baldwin’s numbers, she wins. And Burke got a good break on primary night, when voters chose Jefferson County District Attorney Susan Happ as the Democratic nominee for state attorney general. That means that the Wisconsin Democratic party will, for the first time in history, be running women in both of the state’s marquee races. This could help to attract a crossover vote from moderate Republican women and Republican-leaning independents. But, far more significantly, it could help with generating turnout among young women—a critical factor in a low-turnout off-year election.
2. Burke is, by most reasonable measures, a political newcomer, a relative outsider in a year when voters are very upset with the political class—and when polls show that voters much prefer candidates with a background in business to candidates with a background in politics.
The contrast with Walker is stark. The incumbent has since 1990 run twenty-five primary and general election campaigns (counting a scrapped gubernatorial bid in 2006, but not counting the 2016 presidential bid he is furiously advancing). Few figures in Wisconsin, or national, history more fully fit the definition of a political careerist than Walker. His ambition is intense; he lives for politics and he surrounds himself with political junkies—several of whom have gotten into serious trouble for political abuses. Yet the governor shows few signs of being satisfied with his current position; he has already published a 2016 campaign book, made trips to key Republican primary and caucus states and nurtured a national network of billionaire donors and friendly operatives.
When the Marquette Poll asked Wisconsin voters about Walker’s national ambitions, however, the response was strikingly unenthusiastic. A overwhelming 67 percent of Wisconsinites said they did not want Walker to seek the presidency. And 65 percent (including a majority of Republicans) said they did not think a governor could run for president and handle his state duties.
Like fresh contenders who have won Wisconsin’s governorship in previous periods of political turbulence—most notably Republican Lee Sherman Dreyfus in 1978—Burke is not harmed by the fact that she is a first-time statewide candidate. Indeed, in this election, against this incumbent, it could prove to be a decisive strength.
It is not a lack of sympathy with the historic and current circumstance of Iraq’s religious minorities—or of other persecuted peoples in that traumatized country—that leads some of the most humane and responsible members of Congress to say that President Obama must seek approval from the House and Senate before committing the United States military to a new Iraq mission.
Nor is it isolationism or pacifism that motivates most dissent.
Rather, it is a healthy respect for the complex geopolitics of the region combined with a regard for the wisdom of the system of checks and balances and the principles of advice and consent outlined in the US Constitution.
Consider the case of Barbara Lee.
Few members of the House of Representatives have a so long and distinguished a record of commitment to respecting and protecting the interests of vulnerable populations in distant lands than Lee, a California Democrat who has been deeply engaged in international human rights advocacy since her days as an aide to former Congressman Ron Dellums, D-California.
Since her election to Congress in 1998, Lee has been the essential author or co-author of major pieces of legislation dealing with international HIV/AIDS issues, including the measure that created the Global Fund to Fight HIV/AIDS, TB and Malaria. She organized bipartisan coalitions to respond to genocide in Darfur.
She was a leader the effort to establish the position of special adviser for orphans and vulnerable children. She has served as a US representative to the United Nations. And she has argued, well and wisely, that the hard work of diplomacy, the provision of humanitarian aid, the steady support of international institutions and the recognition of distinct regional issues is invariably more likely to help the world’s most vulnerable peoples than war-making.
Of course Barbara Lee supports immediate and intensive efforts to provide vital aid to the Yazidi people, a religious minority facing harrowing threats from the militant forces of the Islamic State of Iraq and Syria. Of course, she wants to aid and protect religious, cultural and ethnic minorities.
That is why she was one of the first members of the House to express support for “humanitarian efforts to prevent genocide in Iraq.”
Lee praises the president for announcing that “there’s no American military solution to the larger crisis in Iraq.”
But she still expresses legitimate concern about “US mission creep in Iraq and escalation into a larger conflict, which I oppose.”
Within hours of President Obama’s announcement that, in addition to humanitarian efforts, he was authorizing military airstrikes on ISIS forces, Lee called for the president “to seek congressional authorization before any combat operations.”
“For too long, Congress has abdicated its Constitutional role in matters of war and peace,” she explained. “The President should come to Congress for authorization of any further military action in Iraq.”
Lee is not alone in w orrying about the threat of US mission creep in Iraq .
Congressman Jim McGovern, the Massachusetts Democrat who has been an outspoken advocate for hunger relief and related humanitarian initiatives, warned with regard to the airstrikes ordered last week by the president, “These strikes do involve the United States directly in hostilities, regardless of how limited they are and regardless of whether there’s a humanitarian purpose involved. “
In July, the House voted overwhelmingly for a resolution written by McGovern, Lee and Congressman Walter Jones, R-North Carolina, which explicitly signaled opposition to any prolonged US military intervention in Iraq without congressional approval. “We made it very clear that we believe Congress has a significant constitutional role to play,” says McGovern, who explains, “When we bomb ISIS, which is a horrible group, we have to realize that we are heading down the path of choosing sides in an ancient religious and sectarian war inside Iraq. While choosing sides may be something Congress decides that it wants to support, it goes beyond the humanitarian mission of providing relief to civilians stranded on a mountain in imminent danger of dying of hunger and thirst. It goes beyond protecting our military and diplomatic personnel. I am concerned that we are already seeing these different missions blur into one in the press and in Congress. That is deeply troubling.”
Congressman John Garamendi, a California Democrat who has remained deeply involved with conflict resolution in the African region where he served as a Peace Corps volunteer, was quick to voice support for the “ongoing humanitarian mission of airdropping food and water” into Iraq. But he added, “I am seriously concerned that these targeted strikes may become a slippery slope.”
Garamendi says, “Congress needs greater clarity on the objectives of this expanding action.”
That clarity will benefit not just Congress but President Obama.
Even close allies of the president, such as Illinois Senator Dick Durbin, the number-two Democrat in the Senate, insist that escalation “is not in the cards.”
“We cannot send the troops, we must not send the troops,” Durbin argued on NBC’s Meet the Press. “Escalating it is not in the cards. Neither the American people nor Congress are in the business of wanting to escalate this conflict beyond where it is today. I think the President’s made it clear this is a limited strike. He has, I believe, most Congressional support for that at this moment. To go beyond is really going to be a challenge.”
Arizona Senator John McCain and his neoconservative allies take a different view, as do some liberal interventionists. But the necessity of congressional debate is about more than partisanship and ideology. All sides should recognize not just the requirement of congressional consent but the value of the process.
There is a mistaken notion that the system of checks and balances threatens the authority of the presidency. In fact, it can, and often does, provide necessary definition for a commander in chief. When a president seeks the advice and consent of Congress for military intervention, the process itself conveys authority—along with a broad understanding of the mission that is being proposed.
This is as the founders of the American experiment intended, and that intent remains entirely appropriate. If a president proposes a fool’s mission, Congress should be able to prevent him from embarking upon it. If a president proposes a necessary mission, Congress can and in all likelihood will give approval—not always as quickly as the commander in chief would prefer, but on a timeline (and wi th parameters) that will balance executive urgency with legislative caution.
It is not a lack of conscience, or humanity, that inspires the demand that every president—be he a Democrat or she a Republican, be he a conservative or she a liberal—seek the approval of Congress before intervening militarily in a distant land. It a basic premise of the American experiment, as outlined in our Constitution and in our common sense of who we are and how we might best respond to a dangerous and difficult world.
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“I believe that history will record that we have made a great mistake in subverting and circumventing the Constitution of the United States,” declared Oregon Democrat Wayne Morse during the August 7, 1964, debate that preceded the US Senate’s 88-2, vote in favor of the Gulf of Tonkin Resolution. “I believe this resolution to be a historic mistake. I believe that within the next century, future generations will look with dismay and great disappointment upon a Congress which is now about to make such a historic mistake.”
After just forty minutes of debate on August 7, 1964, the US House voted 416-0 to authorize President Lyndon Johnson to use of “conventional” military force in Southeast Asia. The Senate debate took longer—roughly nine hours—giving voice to the deceit, deception and fantasy that would serve as the excuses for what came to be known as the Vietnam War. Yet it also solidified the reputations of two dissenting senators as visionaries.
Senator Morse formally opposed the resolution on constitutional grounds, declaring that Article I of the Constitution would be violated if Congress surrendered its authority to check the President’s power. The Constitution establishes the President as commander-in-chief of the armed forces, but to balance and check this power the Constitution invests Congress with the power to declare war.
When the resolution passed, Morse declared that Congress had surrendered its authority, and therefore the authority of the people it was elected to serve. Morse also deplored the open-ended nature of the approval and condemned Congress for giving the president and the military a “blank check” that would be cashed with taxpayer’s money and citizens’ lives.
The other foe was Ernest Gruening, a former editor of The Nation who helped lead the territory of Alaska to statehood before his election as the new state’s senator.
Gruening shared Morse’s constitutional concerns. But as a long-time participant in great debates about issues of colonialism, empire and democracy, Gruening outlined a second set of reasons for opposing the resolution.
Echoing arguments made by the Johnson administration, the Gulf of Tonkin resolution claimed that “naval units of the Communist regime in Vietnam, in violation of the principles of the Charter of the United Nations and international law, have deliberately and repeatedly attacked United States naval vessels lawfully present in international waters, and have thereby created a serious threat to international peace.” Historians and scholarly analysts would eventually call much of what was claimed into question, debunking key practical and political arguments for the resolution; but Gruening acknowledged a measure of conflict.
What he argued was that the troubles in the region needed to be seen context. And he said that they did not justify providing what The New York Times described as “Congressional prior approval of ‘all necessary measures’ that the president may take ‘to repel any armed attack’ against United States forces and ‘to prevent further aggression.’”
To Gruening and a few others, that seemed dangerously open-ended. One of the youngest members of the Senate, Wisconsin Democrat Gaylord Nelson, proposed an amendment explicitly stating that Congress wanted no extension of the existing military conflict and no direct military involvement by the United States. Nelson was told by Senate Foreign Relations Committee chairman William Fulbright, D-Arkansas, that the amendment was not “contrary to the joint resolution,” but Fulbright said it could not be added for procedural reasons. With that assurance, Nelson grudgingly supported the resolution.
But Gruening, a World War I veteran who in the aftermath of that awful conflict campaigned for anti-imperialist Senator Robert M. La Follette Sr.’s 1924 presidential run (as did a young Wayne Morse), refused to write the blank check. The Alaskan had already advised the Johnson administration, to “disengage immediately, to relieve all our military of combat assignments and bring them home at once”—telling the Senate in March 1964, “I consider the life of one American boy worth more than this putrid mess. I consider every additional life that is sacrificed in this forlorn venture a tragedy. Some day…if this sacrificing is continued it will be denounced as a crime.” Now, he announced on the Senate floor that he would oppose the Gulf of Tonkin Resolution.
“Regrettably, I find myself in disagreement with the President’s Southeast Asian policy,” he told the chamber. “The serious events of the past few days, the attack by North Vietnamese vessels on American warships and our reprisal, strikes me as the inevitable and foreseeable concomitant and consequence of U.S. unilateral military aggressive policy in Southeast Asia.”
Gruening described, with eerie foresight, how Johnson and then President Richard Nixon might use the resolution to extend an undeclared war.
“We now are about to authorize the President if he sees fit to move our Armed Forces…not only into South Vietnam, but also into North Vietnam, Laos, Cambodia, Thailand, and of course the authorization includes all the rest of the SEATO [Southeast Asia Treaty Organization] nations,” the 77-year-old senator said. “That means sending our American boys into combat in a war in which we have no business, which is not our war, into which we have been misguidedly drawn, which is steadily being escalated. This resolution is a further authorization for escalation unlimited. I am opposed to sacrificing a single American boy in this venture. We have lost far too many already.”
More than 58,000 Americans would be killed in action, along with hundreds of thousands of Vietnamese soldiers and civilians, and hundreds of thousands more in neighboring countries.
But, as is so often the case in politics, foresight was not rewarded. In 1968, Gruening was defeated for re-election, as was Morse. Gaylord Nelson, who within weeks of the vote was warning that the president was exceeding the authority he had been granted, survived politically and became a leading antiwar voice in the Senate. Long after a 1970 amendment vote in the Senate renounced the Gulf of Tonkin resolution, Nelson was still paying homage (in interviews with this writer and others) to Morse and Gruening for getting it right when it mattered.
American history contains the stories of a number of brave representatives and senators who have recognized the folly of surrendering “blank-check” authority over matters of war and peace to the executive branch.
Bob La Follette, the Wisconsin progressive who so inspired Gruening and Morse, led a lonely band of senators and House members who in 1917 opposed Woodrow Wilson’s rush to enter World War I.
Jeannette Rankin, who as a young House member from Montana joined La Follette in opposing World War I, cast the sole vote and against declaring war following the 1941 Japanese attack on Pearl Harbor.
Congresswoman Barbara Lee, D-Montana, cast the only vote against authorizing President George W. Bush to wage an initially ill-defined and open-ended “war on terror” in 2001.
Like the others, Ernest Gruening well understood the constitutional risks. What remains striking, even now, fifty years on, is the extent to which he also saw the overarching threat posed by entry into wars in which “we have no business” and of the ensuing “escalation unlimited.”
It gave Gruening no pleasure that he was right. Indeed, he devoted the last years of his life, in the Senate and then as a citizen, to ardent opposition to the war—opening a 1969 article for The Nation by declaring, “It is, and for some time has been, obvious that the most important issue facing our nation is to get out of the war in Southeast Asia. All our other issues and problems are slighted, impaired and unresolved until we halt the fighting, stop the concomitant continuing drain of blood and treasure, and turn to the long-neglected and pressing needs at home.”
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The US House of Representatives voted 225-201 last week for a measure “providing for authority to initiate litigation for actions by the President or other executive branch officials inconsistent with their duties under the Constitution of the United States.”
Translation: House Republicans approved the use of public time and resources to support Speaker John Boehner’s strategy to stir up the conservative base with a lawsuit challenging President Obama’s authority to do what previous presidents have done.
So, despite the fact that a majority of Americans see the lawsuit as a “political stunt,” it will be pursued because, as House Budget Committee chairman Paul Ryan says, “We want to show that we’re not going to take this lying down.”
The timing of the vote—just before the August congressional break in a critical election year—certainly suggests that this lawsuit is more about politics than the Constitution. But political moves matter, especially at the presidential level. They matter electorally. And they matter from a policy standpoint.
So what’s significant here is the question of whether Obama will be intimidated by Boehner’s initiative.
The immediate answer would appear to be “no.”
Though they have many complaints—topped by the usual objections to implementation of the Affordable Care Act—Boehner’s minions have repeatedly raised particularly loud objections regarding the issuance of executive orders that that they see as too ambitious in their intention to protect the environment, aid vulnerable children and better the condition of workers. Yet, after the House voted to back Boehner, Obama issed another order.
In fact, he issued one of the most important orders of his presidency. The Fair and Safe Workplaces Order outlines a set of requirements that are designed to steer federal contracts toward companies that respect labor and civil rights laws.
The president’s order is important. “Currently, there are about 24,000 contractors doing business with the federal government, employing about 28 million workers,” explains Communications Workers of America president Larry Cohen. “By requiring prospective federal contractors to disclose labor law violations, including illegal discrimination and firing of workers who want to exercise their right to organize, more companies may decide that obeying the law and respecting workers’ rights is the smart move after all.”
While Obama’s order is significant, it is not radical—in practice or in the context of past presidential orders.
The order uses transparency (disclosure and reporting requirements for companies) to assure that agencies awarding federal contracts can take into consideration whether bidders for federal contracts have complied with health and safety requirements, wage and hours protections, collective bargaining rules and civil rights laws.
“Requiring companies to disclose their recent compliance with labor and employment laws and allowing agencies to consider those records in the bid process will better ensure that companies receiving taxpayer-funded contracts actually satisfy our nation’s basic wage and workplace standards,” explains National Employment Law Project executive director Christine Owens. “Formal consideration of compliance records in the bidding process will also level the playing field between bidders, reducing the ability of bottom-feeders to shortchange their employees in order to gain an unfair advantage over law-abiding competitors. And incentivizing federal contractors to obey the law protects taxpayers’ interest in ensuring that their tax dollars do not underwrite illegal conduct such as wage theft, health and safety violations, and other unlawful practices that are not only inconsistent with our values but ultimately shift greater costs onto the American public.”
The executive order creates new avenues for encouraging companies to respect protections for minorities and women in the workplace. In particular, notes National Women’s Law Center co-president Marcia D. Greenberger, Obama’s order “will prohibit companies with contracts of more than $1 million from forcing their employees to arbitrate violations of federal law prohibiting discrimination on the basis of race, sex, national origin, or religion or tort claims arising out of sexual harassment or sexual assault.”
The notion that this is overreach, worthy of a legal action by Congress, is a stretch. After all, while Obama is doing something important here, he is not blazing a new trail as regards protection of the civil rights of federal contract workers.
Consider the record:
§ In 1941, under pressure from Brotherhood of Sleeping Car Porters union president A. Philip Randolph and a burgeoning civil rights movement, President Franklin Delano Roosevelt issued Executive Order 8802, which required that defense contracts include provisions to bar private contractors from discriminating on the basis of race, creed, color or national origin. The order also established the President’s Committee on Fair Employment Practice, which was empowered to investigate discrimination cases and “to take appropriate steps to redress grievances which it finds to be valid.”
§ In 1943, President Roosevelt issued Executive Order 9346, which applied the anti-discrimination requirement to all government contractors.
§ In 1948, again under pressure from Randolph and his allies, President Harry S. Truman issued Executive Order 9981, which banned discrimination in the US military. “It is hereby declared to be the policy of the President that there shall be equality of treatment and opportunity for all persons in the armed services without regard to race, color, religion or national origin,” read the order, which established a high-level committee to investigate instances of bias and to make recommendations for how to eliminate it.
§ In 1951, President Truman issued Executive Order 10308, which created the federal Committee on Government Contract Compliance, which was charged with assuring that federal contractors continued, in the post–World War II era, to comply with the non-discrimination provisions of Executive Order 8802
§ In 1953, President Dwight David Eisenhower issued Executive Order 10479, which established the President’s Advisory Committee on Government Organization (an expansion of the Government Contract Committee) to assure that federal contractors respected all anti-discrimination orders and initiatives. Eisenhower’s order declared, “It is the obligation of the contracting agencies of the United States Government and government contractors to ensure compliance with, and successful execution of, the equal employment opportunity program of the United States Government.”
§ In 1961, President John Fitzgerald Kennedy issued Executive Order 10925, which required government contractors to “take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color or national origin.” Kennedy’s order also created the President’s Committee on Equal Employment Opportunity, which was to work with federal agencies to advance the initiative. It was chaired by Vice President Lyndon Johnson.
§ In 1965, President Johnson issued Executive Order 11246, which expanded federal programs to combat discrimination and implement affirmative action programs. The order specifically prohibited “federal contractors and federally assisted construction contractors and subcontractors, who do over $10,000 in Government business in one year from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin.” And it gave the secretary of Labor the job of administering the order’s anti-discrimination protections and initiatives. “Today,” according to the Department of Labor, “Executive Order 11246, as amended and further strengthened over the years, remains a major safeguard, protecting the rights of workers employed by federal contractors—approximately one-fifth of the entire US labor force—to remain free from discrimination on the basis of their gender, race, religion, color or national origin…and opening the doors of opportunity through its affirmative action provisions.”
Presidents, from George Washington on, have issued executive orders. And in the last century, executive orders have been closely—and consistently—tied to the improvement of the circumstance of workers employed by federal contractors.
In issuing executive orders that respect workers and advance civil rights, President Obama is doing what past presidents have done. The only difference is that he faces a lawsuit from a Congress that, in addition to failing to act on its own, wants to prevent the president from acting to get things done.
Reasonable people can and should debate the limits of presidential power, particularly when it comes to issues of war and peace, and questions about spying on Americans or politicizing positions of public trust. Any serious discourse on executive overreach would find plenty to criticize in the approaches of all recent presidents—including President Obama.
But “reasonable” and “serious” are not the words that come to mind as the most powerful and prominent Republicans in Congress attack their president’s executive orders with regard to federal contracts and contractors. The word that comes to mind is “obstruction.” Presidents have often faced obstruction when it comes to protecting workers. And from FDR’s day to today, the response has been to issue executive orders.
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With due respect to congressional Republicans who want to hold President Obama to account for supposedly exceeding his executive authority, and to congressional Democrats who want to hold House Republicans to account for failing to live up to their legislative responsibilities, members of both parties should be focusing now on the question of how to hold the Central Intelligence Agency to account.
CIA officials on Thursday acknowledged that agency operatives spied on computers that were being used by Senate Select Committee on Intelligence staffers who were using to prepare report on an investigation of “enhanced interrogation” techniques and related detention issues. An inquiry by CIA Inspector General David Buckley determined that five CIA employees, two lawyers and three information technology specialists obtained access to what was supposed to be a secure network for the Senate staffers.
The CIA says agency employees “acted in a manner inconsistent with the common understanding” of how the agency and the Senate are supposed to communicate.
The translation from Colorado Senator Mark Udall adds clarity: “The CIA unconstitutionally spied on Congress by hacking into Senate Intelligence Committee computers.”
CIA director John Brennan has apologized to Intelligence Committee chair Dianne Feinstein, D-California, and the ranking Republican on the committee, Georgia Senator Saxby Chambliss.
But if Congress is to maintain meaningful oversight over the federal intelligence agencies, the need for a meaningful response to what Senator Patrick Leahy describes as “a very dark chapter in our nation’s history” cannot be lost amid the usual flurry of internal inquiries, official apologies and “expressions of concern.” As Senator Angus King, an independent from Maine, says, “We’re the only people watching these organizations, and if we can’t rely on the information that we’re given as being accurate, then it makes a mockery of the entire oversight function.”
King is right. But what, then, is the appropriate response?
Udall argues that Brennan should resign. “This grave misconduct not only is illegal, but it violates the U.S. Constitution’s requirement of separation of powers,” says the Colorado Democrat. “These offenses, along with other errors in judgment by some at the CIA, demonstrate a tremendous failure of leadership, and there must be consequences.”
Holding the head of the agency to account is one element of accountability. But the shuffling of those in leadership positions is only a part of a reassertion of the oversight function outlined in the Constitution. As Senator Ron Wyden, D-Oregon, says, there must be a signal that it is “absolutely unacceptable in a democracy” for an intelligence agency to break into Senate computer files and to try to point fingers of blame at innocent Senate staffers.
Christopher Anders, the senior legislative counsel in the American Civil Liberties Union’s Washington Legislative Office, says the matter should be referred to the Justice Department for investigation.
“It is hard to imagine a greater threat to the Constitution’s system of checks and balances than having the CIA spy on the computers used by the very Senate staff carrying out the Senate’s constitutional duty of oversight over the executive branch. It was made worse by CIA Director John Brennan’s misleading the American people in denying any wrongdoing,” explains Anders. “These latest developments are only the most recent manifestations of a CIA that seems to believe that it is above and beyond the law. An uncontrolled—and seemingly uncontrollable—CIA threatens the very foundations of our Constitution.”
A Justice Department inquiry is appropriate.
Ultimately, however, it becomes vital for the Senate to reassert its own authority.
That’s what happened in the 1970s. As the Senate’s own history recalls, “In 1973 the Senate Watergate committee investigation revealed that the executive branch had used national intelligence agencies to carry out constitutionally questionable domestic security operations. In 1974 investigative journalist Seymour Hersh published an exposé in The New York Times uncovering a CIA domestic spy operation in violation of the agency’s charter that had been ongoing for more than a decade. Former CIA officials and some lawmakers, including Senators William Proxmire and Stuart Symington, called for a congressional inquiry.”
Senate leaders tapped Idaho Democrat Frank Church to lead an investigation that would—after “holding 126 full committee meetings, 40 subcommittee hearings, interviewing some 800 witnesses in public and closed sessions, and combing through 110,000 documents”—produce a 1976 report that concluded, “Intelligence agencies have undermined the constitutional rights of citizens, primarily because checks and balances designed by the framers of the Constitution to assure accountability have not been applied.”
Acting on a Church Committee’s recommendation, the Senate in 1976 approved the establishment of the Senate Select Committee on Intelligence. It’s responsibility was to provide “vigilant legislative oversight over the intelligence activities of the United States to assure that such activities are in conformity with the Constitution and laws of the United States.”
The Intelligence Committee should do just that.
As the senior member of the Senate, Judiciary Committee chairman Leahy says, “Congressional oversight of the executive branch, without fear of interference or intimidation, is fundamental to our Nation’s founding principle of the separation of powers. The CIA’s misconduct threatens the institution of the Senate and its role in ensuring the proper oversight of our government.”
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Election seasons are supposed to provide an opportunity for sitting officials to explain their records, and for challengers to question them. And when a top official is facing intense scrutiny based on recent revelations—as New York Governor Andrew Cuomo is in the aftermath of reports regarding his administration’s handling of a corruption inquiry—the need for election season accountability is that much greater.
So it only makes sense that Cuomo should accept the debate challenge posed by his Democratic primary foe, Fordham University Law School professor Zephyr Teachout.
Cuomo took a hard hit when The New York Times reported on July 23 that a high-powered commission he established to root out corruption “was hobbled almost from the outset by demands from the governor’s office.” That followed an earlier report in the New York Daily News that “New York Gov. Andrew Cuomo’s anti-corruption commission killed a subpoena to the state Democratic Party that he controls.”
Cuomo says it is “false” to suggest that the Moreland Commission to Investigate Public Corruption had its independence “trumped” by his aides. But the Daily News says, “Cuomo insisted Monday that the commission operated independently—a rather stunning statement, given his past gyrations.” And the Times says, “Gov. Andrew Cuomo ran for office four years ago promising first and foremost to clean up Albany. Not only has he not done that, but now he is looking as bad as the forces he likes to attack.”
No matter how hard Cuomo and his allies may try to defuse the issue, it’s going to stick with him through this election year. And the governor will only make things worse for himself if he is seen as avoiding public forums for addressing the issues that have arisen.
That’s one of the reasons Cuomo should accept Teachout’s proposal for at least three debates before the September 9 Democratic primary.
Teachout lacks Cuomo’s name identification and campaign treasury. But she is a uniquely credible challenger in this race, and for this debate. As the first national director of the Sunlight Foundation, which has been in the forefront of advocacy for increased transparency and accountability government and politics, she’s an actual expert on corruption issues—and on how to address them. She has written widely on, spoken about and debated issues of money in politics at the local, state and national levels for years. And she has earned national acclaim as a lawyer, an academic and an author on numerous books, including the upcoming Corruption in America, which will be published this fall by Harvard University Press.
And Teachout has made a uniquely credible case for why debates are needed.
“The Cuomo administration’s handling of the Moreland Commission distills what plagues our democracy: a special class of insiders in Albany, connected through financial and political clout, have immunized themselves from the law,” she says. “Governor Cuomo has taken this corruption and elevated it to new levels.”
The governor would, undoubtedly, disagree with that assessment, as he would with Teachout’s argument that “[t]he corruption in our Government is threatening the very basis of our democracy. Albany is working for big money, instead of the people of the state.”
But when a credible challenger, with background and expertise on a central issue, makes such a charge, that is precisely the point at which an incumbent officeholder should be expected to respond.
What makes Teachout’s invitation even more worthy of a response is the fact that she makes it not as a partisan who has always been at odds with Cuomo but as someone who once backed the governor. “I supported Andrew Cuomo in 2010 because I believed he would follow through on his promises to clean up Albany. In his campaign booklet of 2010, Andrew Cuomo said that State government was plagued by scandal,” says Teachout. “I believed him when he said, ‘In many cases the dysfunction has metastasized into corruption that would make Boss Tweed blush.’ I believed him when he said we must restore honor and integrity to Government.”
Now, argues the challenger, Cuomo has become an example of what he said he would address. “Shutting down your own anti-corruption commission when it gets too close to power,” explains Teachout, “ is something that would make Boss Tweed blush.”
Incumbents and front-runners don’t like to debate primary challengers.
But primary debates have a great history in New York Democratic politics. When Mario Cuomo and Ed Koch were running against each other for the Democratic gubernatorial nomination in 1982, they debated close to a dozen times—taking their sometimes intense discourse to every corner of the state. Mario Cuomo won the primary and the governorship.
Twenty years later, when Andrew Cuomo first bid for New York’s governorship in 2002, he participated in a series of debates with his Democratic primary foe, State Comptroller Carl McCall. Cuomo lost that year, but he came back eight years later. In 2010, he secured the Democratic nod without a serious fight, but Cuomo willingly participated in a wild fall debate that included not just Republican nominee Carl Paladino but five candidates representing smaller parties. (Primary and general election debates should include all the candidates who have qualified for the ballot.) Stressing his determination to root out fraud, abuse and corruption, Cuomo was generally seen as having won the debate—as he did the ensuing election.
Debates are good for democracy. But they are not merely exercises in civil duty. Debates allow for the airing of complex issues of personal and political integrity that can never be adequately addressed in thirty-second attack ads on television.
A debate -- preferably, multiple debates -- before the Democratic gubernatorial primary in New York would allow capable candidates an opportunity to wrestle not just with questions about the Moreland Commission and money in politics but with a range of pressing issues.
Teachout wants debates on education, immigration and hydrofracking.
“But,” she adds, well aware of the turn New York’s 2014 campaign has taken, “all three would end up in a debate about corruption.”
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